Hearing on wetlands regulations continues Wednesday in Shutesbury

By SCOTT MERZBACH

Staff Writer

Published: 09-24-2023 3:54 PM

SHUTESBURY — Shutesbury’s Conservation Commission, bringing a series of new and revised wetlands regulations forward for public review, is continuing a hearing on the proposal Wednesday night, after being forced to delay taking input when the virtual meeting reached a capacity of 100 participants last week.

With seemingly great interest in the regulations being developed under the town’s wetlands protection bylaw, the commission’s public hearing will resume at 6 p.m. via Zoom, and will allow up to 500 people to connect, with comments to be offered and questions fielded.

The commission has been working on the regulations for several months. Information supplied by the commission states, “The new regulations will strengthen the commission’s ability to protect water quality, water quantity, and wildlife habitat. They add much-needed protections against the effects of climate change, extreme weather, stormwater, and flooding.”

They also have support from Smart Solar Shutesbury. Some of that group’s members, Sharon Weizenbaum, Jill Buchanan, Carlos Fontes and Elizabeth Fernandez-O’Brien, have retained Donna Brewer, a Wellesley attorney with Miyares Harrington, who has informed them that “the town will be well-served if the Conservation Commission adopts these regulations.”

Gregor McGregor, an attorney hired to advise the Select Board regarding the wetlands regulations, has said the town and commission could be placed at significant legal risk if the draft regulations are adopted prior to the adoption of a new wetlands bylaw. The commission, though, has been revising some of its regulations based on his input.

Brewer, like MacGregor, has suggested that a new bylaw would be in the town and the commission’s best interest. “I disagree, however, that the town and the commission are at a heightened risk of litigation if the commission adopts the draft regulations first,” Brewer wrote to members of Smart Solar Shutesbury.

Elaborating, Brewer wrote, “The commission’s best path to minimize legal risk at this juncture is to adopt the draft regulations and advocate for passage of a new wetlands bylaw at the next available Town Meeting. The draft regulations provide a cogent, reasonable basis for commission action. Failure to adopt the draft regulations, or substantially similar regulations, will cause any commission action to be vulnerable to be overturned as arbitrary and capricious, since the current bylaws and regulations provide little concrete guidance to the commission in assessing the impact of work in resource areas.”

Similar advice has come from Elisabeth Goodman, an attorney with Cain Hibbard in Pittsfield, who is advising the commission. “I do feel strongly it’s helpful to the commission to adopt these regulations,” Goodman said this week.

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Goodman said they provide a clear structure and guidance for future commissions, and support the ongoing work of the commission.

“Without clear defining regulations this town could a) become involved in litigation over its authority to issue any order under the local bylaw, and also be challenged for its failure to act appropriately under the bylaw,” Goodman said.

Weizenbaum, a Smart Solar Shutesbury member who lives in Amherst, has written to other supporters about alleged interference by the Select Board, coming at a time when large-scale solar projects have been proposed in Shutesbury and Amherst.

“The reality is that failing to update our wetland bylaw regulations makes us more vulnerable to potential projects that violate our wetland bylaw,” Weizenbaum wrote. “Updating the bylaw regulations makes local projects and reasonable solar much easier and more straightforward.”

The continuation of the hearing was advised by Goodman so that the commission could accommodate all interested in the regulations. Select Board member Eric Stocker said people were having trouble getting in the last meeting, which was confirmed by a member of the Web Committee. “People are being told the meeting is full and are not being allowed in,” said committee member Gail Fleischaker.

Carey Marshall, the land use clerk for the commission, informed Miriam DeFant, as the chairwoman of the commission, about the issues.

“I have confirmed that it is 100 (attendees), unfortunately we can’t hold as many people that are trying to get in,” Marshall said about the Sept. 18 meeting.

Scott Merzbach can be reached at smerzbach@gazettenet.com.]]>